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Davies Vs. President of the Madras Municipal Commission - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1891)ILR14Mad140
AppellantDavies
RespondentPresident of the Madras Municipal Commission
Excerpt:
.....section 192 to determine as well the question of liability to be taxed as the question whether the person taxed is placed in the proper class. if the object of the legislature was to empower the president in the first instance, and the magistrates on appeal to decide questions with regard to the incidence or amount of any tax which otherwise would have to be decided by the ordinary tribunals, it would be strange that in the particular case of the tax payable under section 103 it should not be open to a person charged with it to complain that he was wrongly charged. admittedly it is open to him to complain of the classification, or in other words, to object that he is overcharged, and the president is bound to entertain his complaint and dispose of it under the provisions of section 190...........to be taxed and classification, and that the right of complaint conceded by that section to the person taxed extends to classification and to classification only. the magistrates disallowed the objection; but it is reiterated before us. in the first place, the contention appears to me to be anything but reasonable. for instance, if a person is placed in class vi instead of in class vii, schedule a, and thereby taxed at rs. 10 instead of rs. 5, he has a right of complaint under section 104 according to the municipal commissioners; whereas a person who is not liable to be placed in any class or to be taxed at all has, according to them, no right of complaint under that section, whatever may be the amount with which he is taxed.6. nor is the contention consistent with the grammatical.....
Judgment:

Muttusami Ayyar, J.

1. This is a case stated for the opinion of the High Court under Section 193 of Act I of 1884. The questions which we have to determine and the facts upon which they arise for decision are stated by the Magistrates in the following terms:

2. 'The appellant in this case, Mr. J.F. Davies, is a partner in the firm of Messrs. Oakes and Co. He was assessed under Section 103 and schedule A, class I, of the said Act to pay the sum of Rs. 125, as tax on arts, professions, trades and callings for the half-year ending 31st March 1890, as agent in charge of the business of Mr. W.H. Oakes, a non-resident shopkeeper, carrying on business under the style of Messrs. Oakes and Co.' He complained under Sections 104 and 190 against such assessment, but it was confirmed by the President.

3. 'The appellant next appealed to us under Section 192 against the decision of the President, hereinafter called the respondent, and for the purposes of our decision, the following facts were admitted:-that the firm of Oakes and Co., consists of three partners, two of whom are Mr. Oakes and the appellant; that Mr. Oakes left India for Europe in the month of July 1889, the business of the firm being managed in his absence by the other two partners; that Mr. Oakes never carried on any business separate or apart from the business carried on by the firm of Oakes and Co.; and that the appellant holds a power-of-attorney from Mr. Oakes in regard to the management of the firm of Oakes and Co., during his absence. After hearing Mr. Reddy Branson for the appellant and Mr. Kenworthy Brown, instructed by Messrs. Barclay and Morgan, for the respondent, we delivered judgment on a subsequent day to the effect that the appellant was not liable to be assessed as aforesaid.

After the above adjudication, the respondent requested us to state a case and refer it for the decision of the High Court, and we accordingly beg to submit for your Lordships' opinion the following questions, which were raised on the hearing of the appeal:

(1) Whether this Court has jurisdiction under Section 192 of Madras Act I of 1884 to entertain and decide the question of the liability of the appellant to be taxed under Section 103?

(2) Whether, assuming that this Court has jurisdiction to decide as aforesaid, Mr. Oakes is liable to be assessed individually and separately as a member of the firm of Oakes and Co., or whether the partners are liable as such to be assessed collectively under Section 103 of the said Act?

(3) Whether, assuming further that each member of the firm of Oakes and Co. is liable to be assessed individually and separately under Section 103, the appellant is liable, in the circumstances of the present case, as set out in paragraph 2 above, to be assessed as a person coming within the designation, 'agents... in charge of the business of the aforesaid persons when the principals are non-resident,' appearing in schedule A, class I?

We decided the first and third questions in the affirmative. In regard to the second question, we held that the partners of the firm are liable to be assessed collectively under Section 103, and that consequently the assessment of the appellant as the agent of Mr. Oakes, one of the partners of the firm of Oakes and Co., was illegal.

4. As regards the first question, I think our answer should be in the affirmative. The Magistrates derive their jurisdiction to hear appeals from decisions of the President under Section 190 from Section 192. Beyond referring to Section 190, Section 192 throws no light on the object matter of the jurisdiction. Section 190 describes the matter to be heard and disposed of by the President as 'a complaint against or an application for revision of any classification or tax preferred under Sections 104, 115, 181 and 188.' Section 104 provides 'The President shall decide in which of the said classes such person ought to be placed. The President may from time to time revise such classification. Any persons dissatisfied with any classification or revision may complain to the President who shall deal with the complaint as an application for revision in the manner provided by Section 190.' The words, 'the said classes, and such person,' are words of reference to Section 103. That section enacts, 'If the Commissioners determine to levy a tax on arts, professions, trades or callings and on offices or appointments, every person who, within the city, exercises any one or more of the arts, professions, trades or callings or holds any one or more of the offices or appointments specified in schedule A shall pay in respect thereof the sum specified in the said schedule as payable by persons of the class in which such person is placed subject to the provisions of Section 110.' Here again schedule A and Section 110, which are referred to in Section 103, should be read as parts of that section. Schedule A is a schedule of persons liable to be taxed and distributes them into seven classes and mentions the specific amounts as payable either with reference to the capital or income or the nature of the profession or trade or employment.

5. The contention for the Municipality before the Magistrates was that upon the true construction of Section 104, a distinction ought to be made between liability to be taxed and classification, and that the right of complaint conceded by that section to the person taxed extends to classification and to classification only. The Magistrates disallowed the objection; but it is reiterated before us. In the first place, the contention appears to me to be anything but reasonable. For instance, if a person is placed in class VI instead of in class VII, schedule A, and thereby taxed at Rs. 10 instead of Rs. 5, he has a right of complaint under Section 104 according to the Municipal Commissioners; whereas a person who is not liable to be placed in any class or to be taxed at all has, according to them, no right of complaint under that section, whatever may be the amount with which he is taxed.

6. Nor is the contention consistent with the grammatical interpretation of Section 104. It commences with the words, 'The President shall decide in which of the said classes each person ought to be placed.' Who is the person referred to by the words, 'such person'? We must look for an answer in Section 103, and in the words of that section, the answer is. every person who exercises, within the city, any one or more of the arts, professions, trades, &c;, specified in schedule A, that is to say, as liable to be taxed; for, schedule A is a schedule of only such persons as are liable to be taxed. Again, Section 196 premises the charge of a tax generally and declares the decision of the Magistrates to be final in regard to it. The natural inference is that the liability to be placed in some class in schedule A presupposes the liability to be taxed and such classification must be taken to include and cannot be dissociated from liability to be taxed.

7. That this is the probable intention of the Legislature appears also from other sections in the Act. Section 107 renders the tax recoverable together with a penalty by prosecution before a Magistrate when the person taxed fails to pay it within the given time and it prescribes a finding by the Magistrate that the person taxed is liable to be taxed as necessary to warrant his conviction. It lends support to the Magistrates' view to this extent, viz., that there is no reasonable ground for excluding from the cognizance of two Magistrates a matter which is liable to be adjudicated on by a single Magistrate or for withholding from the person taxed a means of averting the prosecution by proceeding under Sections 190 and 192. As to the contention of the learned Advocate-General that it may be the intention of the Legislature that the party taxed should proceed by a Civil suit if he is not liable to be taxed, I may refer to Section 208 which takes away the remedy by suit in respect of any tax provided that the directions of the Act are in substance and effect complied with. If the construction suggested for the Municipal Commissioners were to prevail, there would be this anomaly, viz., that the Legislature took away from every person, who is not liable to be taxed, but who is erroneously taxed by the Municipal President, his remedy by suit without substituting for it any other remedy and left him to wait to be prosecuted before he could obtain any redress.

8. The intention inferable from Section 196, which takes away the remedy by suit in respect of the charge of a tax (which includes both the liability to pay it and the amount to be paid), is that the remedy provided by Sections 190 and 192 is substituted for the remedy by suit and that Section 107 makes nonliability to be taxed available also as a matter of defence in case of prosecution. As to the argument founded upon the wording of Section 115, which directs the President to determine what persons are chargeable and the amount of tax, I am not prepared to attach weight to it, as the word classification means, when Sections 103 and 104 are read together, liability to be taxed and the rate at which the tax is to be fixed. The conclusion I come to is that the Magistrates have jurisdiction under Section 192 to determine as well the question of liability to be taxed as the question whether the person taxed is placed in the proper class.

9. As to the second question, I agree with the Magistrates in thinking that by reason of the interpretation clause C to Section 3, a firm or a partnership is a person within the meaning of Section 103. I also think that the tax prescribed by Section 103 is a tax upon a profession or trade or a calling and that there can be but one tax when several persons jointly carry on one trade or business. The contention that when several carry on a joint trade, each is liable to be separately taxed on his share of the income would lead to two anomalies. Take it, for instance, that the aggregate income of a firm renders it liable to be taxed, whilst the share therein of each partner is not liable to be taxed. The result in that case would be that the trade carried on by the firm would altogether escape taxation under Section 103. Take, on the other hand, the case in which the aggregate income and the share of each partner are both taxable with the maximum amount of tax prescribed by schedule A. In that case there would be as many taxes as there are partners instead of there being one tax on the one joint business. In Section 109 every member of a firm or partnership and every member of a joint Hindu family are placed on the same footing, and in an undivided Hindu family, there is but one family coffer or one family income, and until partition and so long as the family continues to be joint, no member can predicate that he has a specific share in the family income or property. Reading, therefore, Sections 103 and 109 together and having regard to the nature of the tax, I consider that there is to be but one tax on the partnership business or joint trade and that the amount of tax payable under schedule A is to be fixed with reference to the aggregate income as under Section 110, but that as a facility towards its collection, every member is to be treated as personally and separately liable for the tax. In this view the omission to specify a partnership as a distinct person in schedule A is intelligible. In law a partnership is not a legal person, but each member is jointly and severally responsible for a partnership debt and the Legislature accordingly omitted to specify a partnership as a person in schedule A. To indicate, however, that the partnership trade is a single trade or business for purposes of taxation, the Legislature treated a partnership as 'a person' within the meaning of Section 103, hut to deprecate any contention on the part of any individual partner that he is only liable to be taxed on his share of the income, the Legislature provided as regards the liability to pay the tax that each partner is to be regarded as if he was personally and separately liable, subject, however, to the condition that it is the partnership business that is to be taxed according to Section 103.

10. The second question submitted for our decision seems to imply that, unless the person taxed is described as taxed as a member of the partnership, he is not liable. It is no doubt desirable so to describe him, but such accurate description is not of the essence of a valid tax. By Section 208 no tax is liable to be impeached by reason of a mistake in the description of the occupation of the person liable to pay the tax.

11. I would, therefore, answer the second question by stating that, though Mr. Oakes may be called upon through his agent, Mr. Davies, to pay the tax due by the firm with reference to its whole income, yet he is not to be charged solely with reference to his share of that income, or as if his business as partner was separate and distinct from that of the firm.

12. My answers to the first and second questions render it unnecessary for me to answer the third question.

Shephard, J.

13. The first question is whether the exception taken by Mr. Davies to the decision of the President of the Municipal Commission is a matter which can form the subject of an appeal to two Magistrates under Section 192 of the Act, I of 1884. The decision of the President was that Mr. Davies, one of the three members of the firm of Oakes and Co., was chargeable with the tax payable under Section 103 of the Act, as being agent in charge of the business of another of the partners, Mr. W.H. Oakes, who was absent from Madras. The main objection taken on behalf of Mr. Davies was that it was the firm that should be taxed, and that, although any member of the firm might be held responsible, the tax could not be levied from each one of them. It is contended on behalf of the President that the objection which has regard not to the classification of the person complaining but to his liability to the tax is one which cannot be made the subject of a complaint under Section 190, and that therefore the Magistrates had no jurisdiction to entertain the appeal, because under Section 192 it is only from decisions of the President passed under Section 190 that an appeal to the Magistrate is given. The language of Section 104 which is the section giving the President power to decide the class in which any person liable to the tax payable under Section 103 shall be placed and of Section 190 lends some colour to this contention. In terms, those sections have reference to complaints made with regard to the class in which the complainant has been placed and not to the decision of the President, necessarily antecedent to any classification, that the complainant, is a person exercising one of the arts, professions, trades or callings mentioned in the schedule. In my opinion, however, the construction contended for on behalf of the President is not the one which should be placed on those sections of the Act. If the object of the Legislature was to empower the President in the first instance, and the Magistrates on appeal to decide questions with regard to the incidence or amount of any tax which otherwise would have to be decided by the ordinary tribunals, it would be strange that in the particular case of the tax payable under Section 103 it should not be open to a person charged with it to complain that he was wrongly charged. Admittedly it is open to him to complain of the classification, or in other words, to object that he is overcharged, and the President is bound to entertain his complaint and dispose of it under the provisions of Section 190. Yet it is said that the person charged has no right under Section 190 to object that he ought not to have been charged at all by showing for instance that he was not the trader he was supposed to be. It seems to me that the jurisdiction to hear a complaint about classification necessarily implies a power to inquire into the particular art, profession, trade, or calling which the person charged may be carrying on. I do not see how, without making this inquiry and without ascertaining what the man's business is, the President can fix the class in which he is to be placed. That the object of the Legislature was what has been indicated above is, I think, rendered clear by reading Section 196 with the other sections already mentioned. That section makes the decision of the President with reference to the assessment, service or demand of any tax or toll, or in case of appeal the decision of the Magistrates, final, and it also provides that no action shall be maintained to recover money paid in respect of any tax levied under the Act. Unless therefore the question of liability to the tax is one which must be adjudicated upon by the President under Section 190, the person charged in respect of a trade which, in fact, he was not carrying on would have no redress. Access to the special tribunal provided by Section 192 would not be open to him, and if the tax were levied by distraint, he would have no remedy in a Court of law. I am of opinion that the Magistrates have put a right construction on the Act and that the first question must be answered in the affirmative.

14. The next question is whether Mr. Davies, as agent of an absent partner, is liable to the tax payable under Section 103. The contention on behalf of the President is that each member of a firm is liable to the tax, his class being determined by the amount of his share of the profits of the business, and it is argued that while 'firms' or 'partnerships' as such are not made liable in the schedule, Section 109 indicates an intention to make each member of it liable. On the other hand, the learned Counsel for Mr. Davies called attention to the definition of the word 'person,' which is so framed as to include a firm or partnership and argued that Section 109 should be read with the definition being inserted for the purpose of showing that, notwithstanding the definition, the liability of the firm might still be brought home to any member of it.

15. In my opinion, the latter contention must prevail, and it was not intended that each member of a firm of merchants carrying on one business should be taxed as several distinct persons.

16. The tax is not levied in respect of the merchant's income, but in respect of his trade or business and, therefore, it would seem to follow that, if the business is one, there should be one tax only and not several. It would hardly be reasonable that the profits and extent of a business remaining unchanged, the amount leviable from the firm should vary with the number of the members. In the case of a firm the person exercising the trade within the meaning of Section 103 is the firm. It is the firm which is to be placed in one of the classes under Section 104, and, lest it should be supposed that the liability is to be joint only, it is declared by Section 109 that each member of the firm is to be personally and separately liable. The language of this section is inartificial; but, in my judgment; no other meaning can be given to it, and it cannot be read as imposing on each member of a firm or a Hindu family an obligation to pay a distinct and separate tax in respect of the trade carried on by them.

17. I am of opinion that the second question must be answered by stating that Mr. Oakes, though he may be liable to be called upon to pay the tax payable by the whole firm, is not otherwise chargeable with any tax in respect of the. business carried on by him.


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